FEDERAL COURT OF AUSTRALIA

Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd [2016] FCA 610

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 29 April 2016 seeking an order pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) that questions of liability in the proceeding be heard and determined separately and prior to any questions of quantum be dismissed.

2.    The applicant pay the respondent’s costs of the interlocutory application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1    In this proceeding, the applicant seeks relief relating to use by the respondent of the name “Shape” in relation to the promotion, provision and sale of what are described by the applicant as “commercial construction services”. The applicant commenced the proceeding on 23 December 2015 by filing a fast track application and fast track statement. The respondent filed a fast track response on 2 February 2016.

2    The applicant alleges that it has promoted, provided and sold commercial construction services under what it describes in the fast track application as the “Shape Trade Mark” since approximately July 2012 and that, by doing so, it has developed a valuable reputation and substantial goodwill in the commercial construction sector. It claims that the respondent began to promote, provide and sell commercial construction services under the “Shape Trade Mark” in approximately October 2015, when the respondent changed its corporate name from “ISIS Group Australia Pty Ltd” to “Shape Australia Pty Ltd”. By this conduct the applicant alleges the respondent has contravened ss 18, 29(1)(g) and 29(1)(h) the Australian Consumer Law and engaged in passing off. Section 18 of the Australian Consumer Law prohibits conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive. Section 29(1)(g) prohibits false or misleading representations that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits. Section 29(1)(h) prohibits false or misleading representations that the person making the representation has a sponsorship, approval or affiliation.

3    The applicant claims the respondent has represented falsely that the respondent’s services are those of the applicant; and, or alternatively, that the respondent’s services are promoted, provided and sold with the licence, authority, sponsorship or approval of the applicant; and, or alternatively, that the respondent has the sponsorship or approval of, or an affiliation with, the applicant. Those allegations form the basis of the applicant’s case under the Australian Consumer Law. They also form the basis of the applicant’s claim of passing off, although there the applicant additionally claims that the respondent’s conduct was calculated to injure, has injured, and is likely to injure the reputation and goodwill of the applicant, its services and the “Shape Trade Mark”.

4    Under the Australian Consumer Law, the applicant seeks declaratory relief, a permanent injunction restraining the respondent from engaging in the impugned conduct, damages, and compensation. In relation to passing off, the applicant seeks damages and, or alternatively at its election, an account of profits. The applicant also seeks orders requiring the respondent to deliver for destruction all material in the respondent’s possession, custody or control that, if used by the respondent, would contravene the injunctions sought by the applicant. Further, the applicant seeks mandatory orders that the respondent change its corporate name to remove the word “Shape” from its name, and orders that it deregister the domain name <www.shapegroup.com.au>.

5    In its fast track response, the respondent pleads that the name “Shape” is not, and could not be, a registered trade mark and that the dispute relates simply to the use of the word “shape” in business names. The respondent says that the applicant’s passing off claim is bound to fail because the applicant “could not seriously contend” the respondent chose “Shape” as its business name in order to trade off the applicant’s reputation. The respondent also contends that the passing off claim appears to be made to enliven an account of profits as a potential remedy, but that such a remedy would be of no utility because of the principles in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25. In that case, the High Court held that an account of profits for infringement of a trade mark is limited to profits made when the infringer knew of the owner’s rights in the mark (at 34–35) and that a defendant is not liable for profits it can prove are attributable to the intrinsic value of its goods (or, as here, services) as opposed to being attributable to the use of the mark (at 42). In oral argument, counsel for the respondent explained that the respondent would contend the custom it has received since changing its name is derived from its prior reputation and has nothing to do with the use of the “Shape Trade Mark”. In its pleading, the respondent denies the applicant’s claims under the Australian Consumer Law and as to passing off and says that the applicant is not entitled to any relief.

6    At a case management hearing on 5 February 2016, the applicant foreshadowed that an application might be made at a later date for orders that the trial be split such that questions of liability would be determined separately and prior to questions of quantum. On 8 April 2016, the Court made orders by consent listing the proceeding for trial on 3 April 2017 for an estimated eight days, but leave was also given for the applicant to file an interlocutory application for a split trial. Given this sequence of events, it is appropriate to waive compliance with the requirement in r 30.01(2) of the Federal Court Rules 2011 (Cth) that any application for a split trial must be made before the matter is fixed for trial.

7    Since the case management hearing on 5 February 2016, a mediation in the proceeding has been conducted but it has not been successful. At the interlocutory hearing, counsel for both parties accepted the parties remained considerably apart on both liability and quantum.

8    On 29 April 2016, the applicant filed an application seeking an order pursuant to r 30.01 of the Federal Court Rules that questions of liability in the proceeding be heard and determined separately and prior to any questions of quantum. The respondent opposes the application.

9    For the reasons that follow, I consider that the proceeding should not be split in the manner sought by the applicant.

Evidence and submissions

The applicant’s affidavit evidence

10    The interlocutory application is supported by a solicitor’s affidavit of Joel Masterson sworn on 29 April 2016. The respondent did not dispute Mr Masterson’s experience in litigation of this nature. Mr Masterson deposes that a trial on liability and quantum would entail “very significant additional preparation”, and therefore additional costs, compared to a trial on liability alone. The additional preparation would relate to discovery of documents relevant to work carried out by the respondent under the “Shape Trade Mark”; lay and expert evidence, including accounting evidence as to the respondent’s profit and the applicant’s loss; trial preparation; and two to three days of additional trial time. Mr Masterson sets out a table estimating additional legal costs in each of those categories, resulting in a total estimate of “up to $192,600” in additional legal costs to the applicant if the trial is not split. Mr Masterson deposes that expert witness fees, hearing fees and transcript costs could add significantly to that amount. Finally, Mr Masterson states that, if the trial is not split and the applicant is unsuccessful on liability, the time and costs spent in relation to quantum will be “entirely wasted”; and, if the trial is split and the applicant is successful on liability, the matter may settle and, if not, the issues to be tried in relation to quantum will nevertheless be clarified.

The respondent’s affidavit evidence

11    On 6 May 2016, the respondent filed a solicitor’s affidavit of Gregory Henry sworn on 5 May 2016. The applicant did not dispute Mr Henry’s experience in litigation of this nature. In his affidavit, Mr Henry opines that “the factual matrix of this dispute means that there is likely to be a significant (albeit not complete) overlap between the issues of liability and quantum”. That opinion is based on the fact that, on Mr Henry’s instructions regarding the respondent and the information available to him about the applicant, it appears the respondent’s business is significantly greater in size than that of the applicant and the respondent’s reputation is therefore also likely to be greater. The respondent is not a new entrant to the market, having been established in 1989, completed more than 5,000 projects, and with a current annual turnover of more than $400 million. Mr Henry deposes that:

The fact of the Respondent’s pre-existing reputation and the dynamics of the market for commercial construction services distinguish this dispute from many other business names disputes. For example, this matter does not involve individual consumers (as distinct from companies) making fast decisions based on fleeting impressions.

12    Based on those factors, Mr Henry deposes that it is likely significant time and evidence will be needed to establish the relevant class or classes of potential customers of the applicant that might be misled by the respondent’s use of the “Shape Trade Mark” (or the “Shape” name, as the respondent contends it should be described). Mr Henry illustrates the overlap in relation to the applicant’s loss and the respondent’s profits in the following ways:

For example, if the Applicant alleges that one or more projects undertaken by the Respondent was diverted from the Applicant by reason of the Respondent’s new name, there will be a factual enquiry to establish the facts surrounding the project(s), and that enquiry is likely to involve evidence from at least some of the same witnesses relied upon for the purposes of liability.

As part of an accounting of profits, the Court would be required to determine, among other things, whether any of the Respondent’s profits are derived from its adoption of the offending name. In other words, the Court must identify the reason customers chose to retain the Respondent. On this issue, the Respondent is likely to rely on the same witnesses as for liability, including the Respondent’s executive(s). These are likely to be supplemented by an expert accounting witness.

13    Therefore, while acknowledging that some additional evidence and trial time would be required to determine liability and quantum together as compared to liability alone, Mr Henry considers the likely difference in time and costs to be considerably less than the estimate given by Mr Masterson, although Mr Henry does not attempt to provide a revised estimate of that difference.

14    Mr Henry also notes that, while both the applicant and the respondent estimate that a combined trial may take eight days, the applicant’s estimate for trial on liability alone is four to five days while the respondent’s estimate is six days. In Mr Henry’s view, that discrepancy may be explained because the respondent considers that much of the evidence on liability would overlap with the evidence on quantum, whereas the applicant considers that liability and quantum can be “neatly split”.

The applicant’s submissions

15    Counsel for the applicant maintained that the principal remedies sought by the applicant were those designed to prevent the impugned conduct from continuing. Thus, the injunctive remedies and mandatory orders were of particular importance to the applicant. So far as the current state of the allegations is concerned, this is indeed a case based on an apprehension by the applicant about ongoing damage to its business and reputation rather than a case which has arisen because the applicant has identified concrete examples of loss of business and customers which have already occurred.

16    Flowing from the matters relating to additional time and cost set out in Mr Masterson’s affidavit, and taking into account what Mr Henry says about the volume of evidence relating to liability, the applicant submits that with a split trial, effective case management could reduce the time to be spent on liability and achieve further efficiencies. This submission seemed to me to be directed at weakening the otherwise forceful point made by the respondent about the likely overlap in the evidence on liability (especially lay and expert evidence about market and about who the consumers of the services might be) and the evidence on loss and damage. The applicant submitted the case could be managed on the basis, for example, that limited discovery could be ordered and liability could be determined based on particular examples of conduct rather than all conduct that might be relevant to the applicant’s claim, the latter of which the applicant contends is unrealistic and would result in a trial of “eight weeks, rather than eight days”.

17    The applicant also submits that a combined trial is likely to be interrupted in any case because the applicant is not required to elect between the alternative remedies of damages and an account of profits until the evidence on liability has been received and may require time to consider its position before making that election. Relying on Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; 217 ALR 495 at [9] and Fleming’s Nurseries Pty Ltd v Hannaford [2008] FCA 591 at [18], the applicant submits that “[i]t is for this reason that it has become customary in intellectual property proceedings for liability to be heard and determined prior to quantum”. In Fleming’s Nurseries, Kenny J said at [17]-[18] in relation to a predecessor to r 30.01:

The principles that govern the circumstances in which an order under O 29 r 2 of the Federal Court Rules may be made are well established. They are discussed by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (Reading) at [7] and [8] and by French J in Olbers Co Ltd v Commonwealth (No 3) [2003] FCA 651 at [7]. Ultimately, the question is whether, in the exercise of the Court’s discretion, this is an appropriate case for the departure from the ordinary course that all issues of fact and law should be determined at the one time, on the basis that it is just and convenient for the order to be made: see Reading at [9]; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. As counsel for the applicants pointed out, the outcome of the reported decisions on O 29 r 2 turns in each instance on the nature of the case and the particular circumstances relevant to it.

It is customary in intellectual property cases, however, to hear and determine issues of liability separately and before issues of pecuniary relief. This is largely because it is generally thought just and convenient to so order on account of the fact that an applicant in such a case is not compelled to make an election as between damages and an account of profits at least before the evidence on liability has been received: see Reading at [9] per Branson J; Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 75 FCR 230; Digi International Inc v Stallion Technologies Pty Ltd (2001) 53 IPR 529 at [40] per Ambrose J; and Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7]-[9] per Stone J. Under s 56(3) of the PBRA, in an action for infringement, Canada is entitled to make an election for damages or an account of profits. That is, the nature of Canada’s case attracts the same considerations as other intellectual property cases requiring an election between the remedies in the event that liability is established.

18    In oral submissions, some considerable emphasis was placed on the existence of this election, although counsel for the applicant accepted it was relevant only to the passing off claim. He accepted that the timing of the election was a matter wholly within the control of the applicant. That concession has some relevance to my consideration of the application, as I set out below.

19    Finally, the applicant reiterates Mr Masterson’s opinions that, once liability is determined, issues of quantum are often able to be resolved between the parties, including with the assistance of a mediator, and that even if that does not occur in this proceeding a subsequent hearing on quantum would have greater focus and efficiency than would otherwise have been the case. I return to this matter below.

The respondent’s submissions

20    In its written submissions, the respondent accepts that the principles and authorities identified by the applicant are relevant and applicable, but emphasises that the question whether to order a split trial is discretionary and depends upon the circumstances of the particular case having regard to factors identified in the authorities. The respondent submits that the “ordinary course” is for all issues of fact and law in a proceeding to be decided at the same time, relying upon Latteria Holdings Pty Ltd v Corcoran Parker Pty Ltd (No 2) [2014] FCA 1378 at [35]; Reading at [7]; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [5]; Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-2; Arnold v Attorney-General (Vic) (unreported, Sundberg J, 8 September 1995) at 7; and on observations regarding the “illusory” benefits of split trials made by Kirby and Callinan JJ in their Honour’s dissenting joint judgment in Tepko Pty Ltd v Water Board [2001] HCA 19; 206 CLR 1 at [168]-[170], Gaudron J agreeing on this point at [52]. The respondent also relies more specifically on the principle stated by Branson J in Reading at [8] that a factor telling against the making of an order for a split trial is if the separate and prior determination of a question would:

result in significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: GMB Research & Development Pty Ltd v Commonwealth; Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629-37 of 1995, 8 September 1995, BC9502745). This factor will be of particular significance if the court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; …

21    Contrary to the applicant’s submissions, the respondent contends that credibility issues may arise, including in relation to competing evidence regarding the markets in which the parties operate.

22    A final point made by the respondent in its written submissions is that loss or damage is an element of the causes of action pleaded by the applicant. In support of that proposition in relation to ss 18, 29(1)(g) and 29(1)(h) of the Australian Consumer Law, the respondent relies upon Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525; Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 418–419; and JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 249, 251. In relation to passing off, the respondent relies upon Erven Warnink BV v J Townend & Sons (Hull) Ltd (No 1) [1979] AC 731 (HL) and Reckitt & Colman Products v Borden Inc [1990] 1 WLR 491 (HL). The respondent contends that, in those circumstances, it would be difficult or impossible wholly to separate issues of quantum and liability. Branson J made comments to similar effect in Reading at [11]-[12], as did Stone J in Energy Australia at [7].

Resolution

23    As the authorities emphasise, including the extract from Kenny J in Fleming’s Nurseries at [17] above, the Court’s discretion on this application is to be exercised having regard to a split trial being a departure from the ordinary course that all issues of fact and law should be determined at the same time. It is to be exercised only where the Court is satisfied it is just and convenient for the order to be made. Even though individual factors may be weighed and considered, ultimately the Court must take a holistic approach to deciding whether the circumstances of a particular proceeding do or do not justify departure from the usual course. In my opinion, that holistic approach is important to ensure the benefits of a split trial are real and not illusory: see Tepko at [168]-[170], to which the respondent referred.

24    It must also be recalled that this discretion, like other discretionary procedural powers in the Federal Court of Australia Act 1976 (Cth), is to be exercised in a way which “best promotes” the overarching purpose of the civil practice and procedure provisions in the Federal Court Act and the Federal Court Rules: see s 37M(3). That overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Included in that overarching purpose are the more particular objectives set out in s 37M(2) of the Federal Court Act.

25    The context in which the discretion falls to be exercised in the present proceeding is that a trial has been fixed for a period of eight days, commencing on 3 April 2017. The parties are broadly agreed about the necessary steps to prepare for trial, although to be fair the respondent’s position was couched by its counsel as being that it could not disagree with the proposed timetable and raised no specific difficulties with it. The applicant says discovery by categories could largely be agreed and should be capable of being completed by approximately the end of July 2016. The applicant’s affidavit evidence and expert reports could be filed by approximately by September 2016, and the respondent’s affidavits and expert reports could be filed by December 2016. Counsel for the respondent added, sensibly, that some programming is likely to be necessary for joint reports and possibly the giving of concurrent expert evidence.

26    On this kind of timetable, with the matter listed for trial on all issues in early April 2017 and the parties adhering to their estimate that this is sufficient time to complete the entire trial on all issues, it seems to me that the most efficient and effective way to resolve the controversy between these two parties is for the usual course to be adopted and for there to be a trial on all issues. The matter will be ready for trial in time and the parties have time and opportunity to keep costs to a minimum by, for example, agreeing facts and documents in issue and taking advantage of the opportunities for a joint expert report. Hearing and determining all issues together produces, in my opinion, a process where the costs of the trial are less likely to be disproportionate to the value of the claim, even though no figure has been put on the value of the claim. Despite their differences, the parties have worked cooperatively and responsibly to date and I see no reason why that would not continue. These factors weigh in favour of keeping issues of liability and quantum together for determination.

27    At present, I am not persuaded by the applicant’s submissions that this is a case which could be conducted effectively by way of a representative sample of conduct said to constitute contraventions of the Australian Consumer Law and/or passing off. It is simply too early in the proceeding to be confident it could be conducted in that way, and as yet there is no reason to suppose the respondent would agree to such a process, nor should it be required to. On the allegations as they currently stand, the applicant will be required to prove its case in the usual way and any entitlement to damages or other remedies will flow only from the unlawful conduct it has proved against the respondent.

28    Although the applicant urged the Court to see the overlap of issues and witnesses as unlikely to give rise to any difficulties of the kind referred to by Branson J in Reading, I do not accept that possibility is as remote as the applicant would have it. I accept the respondent’s submissions, and Mr Henry’s evidence, that there may indeed be considerable overlap in the evidence on liability and on quantum. It is likely that some of the same lay and expert witnesses will give evidence on both aspects. In particular, this seems to me to be the case in relation to the identification of the relevant markets and of the potential buyers or consumers of the services so as to establish both reputation and the nature and scope of those who might be likely to be misled by the alleged unlawful conduct. Similarly, to prove loss under the Australian Consumer Law, the applicant will need to identify whether any specific projects that have been undertaken by the respondent were projects which may otherwise have gone to the applicant and evidence of this is likely to overlap with evidence given on liability about customers, projects and possible confusion. Further, on any account of profits, at least some of the witnesses who gave evidence on liability are likely to be used to establish that the profits were made by the respondent because of its use of the offending name.

29    While it can be accepted that accounting evidence may be confined to loss and damage issues, I am far from satisfied that this would be the majority of the evidence on loss and damage, including on any account of profits should the applicant make that election. The analogy with cases such as Fleming’s Nurseries can only be taken so far: this is not, in its causes of action, an intellectual property case.

30    In both Reading and Energy Australia, Branson and Stone JJ (at [12] and [7] respectively) noted that in claims of misleading or deceptive conduct it is not possible to separate liability and damage completely. I respectfully agree. In part, this may be just another way of expressing the point made by the respondent about overlapping evidence. However, there are also considerations of what is most appropriate from the Court’s perspective: its conclusions on compensation orders and other kinds of relief will be more effectively and efficiently reached if it is examining the case as a whole, rather than returning to the question of relief after some period of time has elapsed from the making of findings on liability. Just as the parties’ submissions recognised that legal representatives must prepare again where a proceeding is fragmented, so too must the Court. Impressions of witnesses (including experts), impressions about the weight of evidence and the strength of legal arguments, detailed and focussed attention on the relevant authorities — all of these remain fresher and more acute in the judicial mind if consideration is given to questions of relief at the time that questions of liability are also being determined.

31    A further point on fragmentation is the prospect of appeal if the trial is split. Failure to advert to the real possibility of appeal contributes in my opinion to the “illusory” benefits of splitting trials. The perceived benefit of efficiency and effectiveness is substantially diminished if, on a split trial, the unsuccessful party appeals on liability. Fragmentation, delay and cost are then increased and the possibility of a negotiated outcome is decreased. A matter may move up and back between first instance and appellate levels. That is why the usual and preferable course is for the court to determine all controversies between the parties at the same time and finally.

32    Of course, these considerations may operate differently depending on the nature and scope of the particular piece of litigation. Here, the parties have agreed the entire trial can be completed in eight days. This is not a two or three month case, where different considerations might apply. The trial has been fixed, and the parties and the Court are available for that period. On the applicant’s split trial hypothesis, if matters run smoothly, there would be a trial on liability in April 2017, and then assuming compliance with the Court’s policies on delivery of judgment, a judgment on liability by the end of July or so. If the applicant is successful, a further hearing will be required and this may not occur for a significant number of months after July: it is already the case that at a case management hearing in March 2016 the trial was fixed for April 2017, so it is fair to assume that on delivery of judgment in July 2017, it is unlikely a trial on damages could occur until quite some time later in 2017. These are the realities of the Court ensuring that all litigants in the Court have their cases managed efficiently and dealt with in a timely way: it cannot be assumed the applicant could insist on its case on damages ‘leapfrogging’ over the cases of other litigants to be heard earlier. Once this kind of timetable is set out, it is apparent that the administration of justice is best served by disposing of all issues between the parties in the eight days which have already been allocated. In my opinion, the objectives set out in s 37M(2) of the Federal Court Act are best served in this case by a combined trial on liability and quantum rather than a split trial.

33    Further, it seems to me that the applicant’s right of election in respect of its passing off claim cannot found an entitlement to a split trial. The applicant cannot withhold its election so as to make the splitting of the trial a more attractive prospect. This is not to suggest that is what has occurred in the present proceeding, because there has been no discovery let alone evidence and it is clearly premature to expect the applicant to make its election on the passing off claim yet. Nevertheless, in considering what is just and convenient in terms of departing from the usual course of a trial on all issues, in my opinion it should be remembered that if the trial proceeds through discovery and the filing of affidavit and expert evidence ahead of trial, it may well be possible for the election reasonably to be made before the trial commences in April 2017. If the applicant chooses not to do so, that is, on the authorities, its forensic right: see Dr Martens Australia Pty Ltd v Bata Shoe Company of Australia Pty Ltd (1997) 38 IPR 163 at 169 per Goldberg J. But in a case such as this where a major component of the trial on quantum is not dependent on the existence of an election (that is, the applicant’s claims under the Australian Consumer Law) I do not see why the timing of the election should be a factor weighing in favour of departure from the usual course when the timing is wholly dependent on the forensic decision of one party. That is especially so where that party is the applicant, who has assumed the burden of proving the case it has decided to bring. As the respondent submitted, the Court should not adopt a given course merely to avoid the applicant having to make forensic choices about litigation risks, which are a necessary part of the proceeding.

34    In a similar vein, the applicant submitted that the costs identified by Mr Masterson were “additional” and, if incurred and the applicant lost on liability, would be “wasted”. I am not persuaded this is a correct characterisation. If the applicant wishes to prove its loss, the costs it identifies are a necessary part of that exercise. To some extent, the level of cost is in the hands of the applicant, especially whether it chooses to brief senior and junior counsel. If the applicant fails on liability, in a sense all of its costs are “wasted”, and in that regard I see no difference between costs incurred in the liability aspect of its claim and costs incurred in the quantum aspect.

35    If there were evidence suggesting a real possibility that quantum might be agreed if liability were decided in the applicant’s favour, then this might well have tended to favour a split trial. But there is no such evidence. The parties are vigorously opposed on both liability and quantum. The applicant’s counsel described the parties as at “loggerheads”. Neither would offer any indication of the value of the claim so that the Court could engage in any comparison with the costs said by the applicant to be involved in, at least, the quantum side of the proceeding. Neither would make any concessions about what kind of negotiated outcome on quantum might be possible if the Court decided liability first in favour of the applicant. Both parties accepted there was a possibility that a decision on liability could alter the currently entrenched positions, but whether that possibility may eventuate is no more than speculation at this stage of the proceeding.

36    For those reasons I am not satisfied it is just and convenient for an order to be made under r 30.01 of the Federal Court Rules that questions of liability in the proceeding be heard and determined separately and prior to any questions of quantum.

Associate:

Dated:    30 May 2016